By Rob Natelson for the Federalist Society
June 27, 2023
Indian law, including Indian constitutional law, is famously chaotic. With the Supreme Court’s 5-4 decision in Arizona v. Navajo Nation, it just got more so.
Although the Court likely reached the correct result, a key part of the majority opinion seems to conflict with a pronouncement last week in Haaland v. Brackeen.
I discussed the Brackeen case in this space a few days ago. Justice Amy Coney Barrett’s majority opinion broadened Congress’s power to “regulate Commerce . . . with the Indian Tribes” into one to regulate all “Indian affairs”—a formulation rejected explicitly by the Constitutional Convention of 1787. To buttress her conclusion, Justice Barrett resorted to recitals of federal authority, unstated in the Constitution, but often cited by advocates of congressional power:
We have also noted that principles inherent in the Constitution’s structure empower Congress to act in the field of Indian affairs . . . . With this in mind, we have posited that Congress’s legislative authority might rest in part on “the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government . . . Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power.
However, in Arizona v. Navajo Nation, Justice Brett Kavanaugh’s opinion for the court follows the 2011 decision in United States v. Jicarilla Apache Nation to reject any free floating, extra-constitutional trust relationship:
The Tribe asserts a breach-of-trust claim. To maintain such a claim here, the Tribe must establish, among other things, that the text of a treaty, statute, or regulation imposed certain duties on the United States. See United States v. Jicarilla Apache Nation . . . The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.” Jicarilla . . . Whether the Government has expressly accepted such obligations “must train [sic] on specific rights creating or duty-imposing” language in a treaty, statute, or regulation.
Thus, in the Court’s view, any government-tribal trust relationship must be grounded in a “treaty, statute, or regulation.” It is not inherent in all government-tribal relations and cannot be a source of, or even necessarily “inform,” legislative power.
In this case, the Court held that the only possible basis for the Navajos’ claim was an 1868 treaty between the United States Government and the tribe.
The Nuts and Bolts of the Case
Arizona v. Navajo Nation was basically a water rights dispute. Under a rule established in Winters v. United States, when the federal government cedes land to an Indian tribe, in the absence of language to the contrary, the government also impliedly cedes sufficient water rights to meet the purposes of the grant. Thus, when the government conveys land for a reservation, it implicitly conveys sufficient water for the reservation to become a going concern.
Incidentally, in the arid western United States, these “Winters rights” often become a sore point. As the Navajo Nation argued in this case, tribes frequently claim they are entitled to more water than they are getting. But satisfying a tribal claim may require infringing bought-and-paid-for state water rights held by non-tribal members. The resulting animosity between a tribe and its non-tribal neighbors can be bitter.
No one disputed that the 1868 treaty implicitly conveyed water rights to the Navajos. But the tribe contended that the treaty also required the federal government to undertake certain affirmative duties pertaining to that water. The exact scope of those affirmative duties was a matter of dispute between Justice Kavanaugh and Justice Neil Gorsuch, who wrote for the four dissenters.
Interpreting treaties—like interpreting almost all other legal documents other than (in modern dogma) the Constitution—is a purely originalist enterprise: Once the court held that the Navajo Nation’s claim could be justified only by the 1868 treaty, the case became a straightforward matter of finding the “intent of the parties.” In Justice Kavanaugh’s words, “[A] treaty’s interpretation, like ‘a contract’s interpretation, [is] a matter of determining the parties’ intent.’ . . . That means courts must look to the ‘shared expectations of the contracting parties.’”
In Indian treaties, finding the “parties’ intent” requires applying the familiar presumptions that ambiguous terms are construed against the drafter (generally the government) and making allowances for power disparities and language and cultural differences.
Justice Kavanaugh points out that, although the 1868 treaty imposed some affirmative obligations on the government, it did not impose affirmative obligations related to water. He therefore concluded that there were none. Of course, this is an exercise of another principle of documentary interpretation: Inclusio unius est exclusio alterius—the inclusion of one implies the exclusion of the other. The principle arises because observation tells us that when parties insert a list in a document, they probably intend to exclude items they did not put on the list.
Other Opinions
Justice Clarence Thomas joined the opinion of the Court, but concurred as part of his ongoing plea for more coherence in Indian law. In particular, he noted how the government-tribal “trust relationship” has been characterized both as the result of specific engagements and as a free-floating obligation.
Justice Gorsuch’s dissent, like his concurrence in Brackeen, begins with a lengthy history and a recital of Indian grievances. His more effective argument, however, is that the Navajo request was far narrower than the majority assumed—that the Navajos sought merely that the government determine the scope of the tribe’s reserved water. He added that the Navajo had been waiting a very long time for an answer:
To date, their efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. . . . At each turn, they have received the same answer: “Try again.” When this routine first began in earnest, Elvis was still making his rounds on The Ed Sullivan Show.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.
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Robert G. Natelson is a nationally known constitutional scholar and author whose research into the history and legal meaning of the Constitution has been cited repeatedly at the U.S. Supreme Court, both by parties and by justices. For example, justices have cited his works 17 times in five different cases since 2013. During the Supreme Court term ending in June, 2016 parties referenced his work in 12 different briefs and petitions for certiorari. He is is widely acknowledged to be the country’s leading scholar on the Constitution’s amendment procedure and among the leaders on several other topics.
He was a law professor for 25 years, serving at three different universities, where among other subjects he taught Constitutional Law, Constitutional History, Advanced Constitutional Law, and First Amendment. Professor Natelson is currently the Senior Fellow in Constitutional Jurisprudence at the Heartland Institute in Arlington Heights, IL, the Independence Institute in Denver, Colorado, and the Montana Policy Institute in Bozeman, Montana. He heads the Independence Institute’s Article V Information Center.
Professor Natelson’s articles and books span many different parts of the Constitution, including groundbreaking studies of the Necessary and Proper Clause, federalism, Founding-Era interpretation, regulation of elections, and the amendment process of Article V. In addition to his authorship of law journal articles and legal books, he has written the highly influential Article V Handbook for state lawmakers, the popular book, The Original Constitution: What It Actually Said and Meant, and numerous shorter pieces for media outlets. Recent contributions have been published by the Washington Post, the Washington Times, the Denver Post, the American Spectator, the Wall Street Journal, Barron’s, Townhall.com, the American Thinker, CNSNews, and the Daily Caller, among others.
Professor Natelson is especially known for his studies of the Constitution’s original meaning. His research has carried him to libraries throughout the United States and in Britain, including four months at Oxford. The results have included several break-though discoveries.
His publications are too numerous to list; the bibliography listed here is just a sample. In addition to his articles on the U.S. Constitution, he created the first online guide to “originalist” research (now partly duplicated here); created the database the Documentary History of the Ratification of the Montana Constitution; and in conjunction with his eldest daughter Rebecca, edited the first complete Internet versions of the Emperor Justinian’s great Roman law collection (in Latin).
There are several keys to Professor Natelson’s success as a scholar. Unlike most constitutional writers, he has academic training not merely in law or in history, but in both, as well as in the Latin classics that were the mainstay of Founding-Era education. He works to keep his historical investigations objective. He also has the benefit of lessons and habits learned in the “real world,” since prior to entering academia he practiced law in two states, ran his own businesses, and worked as a journalist and at other jobs.
For about a decade, Professor Natelson had a career in public life in his “spare time.” He created and hosted Montana’s first statewide commercial radio talk show; became the state’s best known political activist; led, among other campaigns, the most successful petition-referendum drive in state history; and helped push through several important pieces of legislation. In June 2000, he was the runner-up among five candidates in the party primaries for Governor.
Recreation? he loves to spend time in the great outdoors, where he enjoys hiking and skiing with his wife and three daughters. He also likes travel, science fiction, and opera. He is active in the Denver Lyric Opera Guild.